Donoghue v Stevenson
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Donoghue v Stevenson – Appeal Papers – Judgments
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deference thus paid to English precedents it is a singular fact that the case of Winterbottom v. Wright is one in which no negligence in the sense of breach of a duty owed by the defendant to the plaintiff was alleged on the part of the defendant. The truth, as I hope to show, is that there is in the English reports no such "unbroken and consistent current of decisions" as would justify the aspersion that the law of England has committed itself irrevocably to what is neither reasonable nor equitable, or require a Scottish judge in following them to do violence to his conscience. "In my opinion," said Lord Esher in Emmens v. Pottle, 1885, 16 Q.B.D., 354 at pp. 357-8, "any proposition the result of which would be to show that the common law of English is wholly unreasonable and unjust cannot be part of the common law of England."
At your Lordships' bar Counsel for both parties to the present appeal, accepting, as I do also, the view that there is no distinction between the law of Scotland and the law of England in the legal principles applicable to the case, confined their arguments to the English authorities. The appellant endeavoured to establish that according to the law of England the pleadings disclose a good cause of action; the respondent endeavoured to show that on the English decisions the appellant had stated no admissible case. I propose therefore to address myself at once to an examination of the relevant English precedents.
I observe in the first place that there is no decision of this House upon the point at issue, for I agree with Lord Hunter that such cases as Cavalier v. Pope  A.C. 428 and Cameron v. Young  A.C. 640 which decided that "a stranger to a lease cannot found upon a landlord's failure to fulfil obligations undertaken by him under contract with his lessee" are in a different chapter of the law. Nor can it by any means be said that the cases present "an unbroken and consistent current" of authority for some flow one way and some the other.
It humbly appears to me that the diversity of view which is exhibited in such cases as George v. Skivington, 1869, L.R. 5 Ex. 1 on the one hand and Blacker v. Lake & Elliot, 1912, 106 L.T. 533, on the other hand — to take two extreme instances — is explained by the fact that in the discussion of the topic which now engages your Lordship's attention two rival principles of the law find a meeting place where each has contended for supremacy. On the one hand there is the well-established principle that no one other than a party to a contract can complain of a breach of that contract. On the other hand there is the equally well-established doctrine that negligence apart from contract gives a right of action to the party injured by that negligence — and here I use the term negligence of course in its technical legal sense, implying a duty owed and neglected. The fact that there is a contractual relationship between the parties which may give rise to an action for breach of contract does not exclude the co-existence of a right of action founded on negligence as between the same parties independently of the contract though arising out of the relationship in fact brought about by the contract. Of this the best illustration is the right of the injured railway passenger to sue the railway company either for breach of the contract of safe carriage or for negligence in carrying him. And there is no reason why the same set of facts should not give one person a right of action in contract and another person a right of action in tort. I may be permitted to adopt as my own the language of a very distinguished English writer on this subject: "It appears," says Sir Frederick Pollock (Law of Torts, 13th ed., p. 570) "that there has been (though perhaps there is no longer) a certain tendency to hold that facts which constitute a contract cannot have any other legal effect. The authorities formerly relied on for this proposition really proved something different and much more rational namely, that if A breaks his contract with B (which may
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